No. 05-06-00037-CR.
Opinion Filed January 10, 2007. Do Not Publish. Tex. R. App. P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 23453-422.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
Opinion By ELIZABETH LANG-MIERS, Justice.
A jury found Norvell Dwaine Johnson guilty of four counts of aggravated sexual assault of a child, two counts of sexual assault of a child, and two counts of indecency with a child by sexual contact. The jury assessed punishment at life in prison and a $10,000 fine in each of the four aggravated sexual assault counts and twenty years in prison and a $10,000 fine in each of the sexual assault and indecency counts. The sentences run concurrently. Appellant raises four issues on appeal, arguing the evidence is legally and factually insufficient to show the victim was younger than 14 years of age in two of the aggravated sexual assault counts; the evidence is legally and factually insufficient in all counts because the State did not allege and prove a specific, single incident for each count; and the trial court erred by denying his motion to quash the two indecency counts.
I. Factual Background
K.W. is the complainant and appellant's stepdaughter. K.W., her twin sister, C.W., and her older sister lived with their maternal grandparents from an early age. In 1996, when K.W. was 11 years old, she and her sisters moved to a trailer house in Terrell to live with their mother and appellant, their mother's husband. The family lived there for less than a year then lived with the grandparents for a few months. The family moved into a rental house in Terrell when K.W. was 12 years old and lived there about four years. Then they moved to a mobile home in Elmo. K.W. testified appellant began sexually assaulting her soon after she moved to the trailer in Terrell. She recalled she was 11 years old the first time appellant touched her inappropriately. Appellant said he wanted to talk to her and pulled her into the master bedroom of the trailer. She testified she was considered an "early bloomer," and appellant said he wanted to help her with her "sexual problem." He first touched her over her clothing. K.W. testified the first time appellant touched her under her clothing was when she was sleeping in her bedroom in the trailer house. Appellant touched her, then pulled off her pajamas, and "he'd just work his way down from my breasts." She said he eventually penetrated her vagina with his finger and she felt a sharp pain. When she asked him to stop, she could tell by the tone of his voice that he was mad. She testified appellant did this more than two times when she was younger than 14 years old. K.W. recalled when she was 12 years old and after they moved to the rental house in Terrell that appellant told her to come to his bedroom because he wanted to talk to her. As he talked to her, he touched her in her "private areas" and began taking off her clothes. K.W. testified appellant said "he wanted to taste me," and that he was "doing it for your good, to help you." Appellant forced her onto the bed, held her down, pushed her legs apart and licked her "down there" in her "private area." She testified this type of contact began occurring when she was 12 years old and continued until she was older. She said appellant tried to do this "as often as he could" and that it happened at least three times. K.W. also recalled that the first time appellant penetrated her vagina with his penis was when they were living in the rental house. Appellant came into her bedroom while she was asleep, removed her clothes, and got on top of her. She felt him penetrate her. K.W. testified appellant did this more than two times. K.W.'s grandmother testified K.W. became quieter than normal after she moved in with her mother and appellant. Her grandmother said there were occasions when K.W. stayed overnight with her. When she did, appellant called K.W. on the telephone more than once an evening to talk to her. When her grandmother questioned her about it, K.W. always told her everything was okay. K.W.'s mother testified appellant made the girls "almost French kiss" him and give him a full-body hug each time they left the house. If they did not, he got an "attitude," and would cause a "big old huge argument" in the entire household. K.W. and C.W. both testified that if they did not kiss appellant the right way, he got mad and made them do it again. K.W.'s mother also testified that after a fight over K.W.'s boyfriend, appellant insisted on going into K.W.'s bedroom alone to talk to her. When her mother opened the door, she saw appellant on the bed lying on top of K.W. This happened "two, three times every week." After appellant was arrested, he said "all I ever did was check her to see if she was a virgin." In early 2005, when they were 19 years old, K.W. and C.W. moved out of the house in Elmo at their mother's urging and went to stay with their aunt Tammy, who also happened to be their stepsister. Tammy asked K.W. whether appellant had touched her inappropriately. When K.W. told her what happened, Tammy suggested they call the sheriff. K.W. testified she did not tell anyone before this because appellant told her no one would believe her and he would kill her if she told. After the State rested its case in chief, appellant called his two brothers, sister, sister-in-law, and a church friend to testify on his behalf. They testified they never saw appellant engage in any inappropriate behavior in their presence. One of appellant's brothers admitted he saw appellant and the girls kiss on the mouth. He said both K.W. and C.W. went up to appellant to kiss him. But he said he did not think anything about it, the girls did not display any discomfort or nervousness, and it appeared to be an "every day thing." Appellant testified and denied all allegations. He said K.W. made up the allegations because he argued with her about her boyfriends. On cross-examination, appellant admitted that he always kissed K.W. and C.W. on the mouth and that it was "no big deal." He said "[i]t was their deal too." He also admitted he told K.W.'s mother that he checked to see whether K.W. was still a virgin. Appellant added that K.W. "was might near 19 years old. She agreed to it." Although the record does not reflect any demonstration by appellant, the prosecutor argued to the jury that when appellant was asked whether he checked to see if K.W. was a virgin, "he even just demonstrated with his hands how he looked and touched." II. Sufficiency of the Evidence
Appellant challenges the legal and factual sufficiency of the evidence to support the convictions. A. Standards of Review
We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). In reviewing challenges to the factual sufficiency of the evidence, we will reverse only if the verdict is clearly wrong or manifestly unjust. See Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Both sufficiency standards require us to consider all of the evidence. See Marshall v. State, No. AP-75,048, 2006 WL 3733198 at *5 (Tex.Crim.App. Dec. 20, 2006). The difference between the two standards is this: under a legal sufficiency review, we defer to the jury's determinations of credibility and weight of the evidence whereas, under a factual sufficiency review, we afford due deference to the jury's determinations of these questions and may substitute our judgment for the jury's only if we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. (citing Watson, 204 S.W.3d at 414, 417). B. Applicable Law
A person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the sexual organ of a child to contact the mouth of another person, including the actor, and the child is younger than 14 years of age and not the spouse of the actor. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2006). The tongue is part of the mouth for purposes of this statute. See Montoya v. State, 841 S.W.2d 419, 422 (Tex.App.-Dallas 1992) (op. on reh'g), vacated on other grounds, 906 S.W.2d 528 (Tex.Crim.App. 1995); Jiminez v. State, 953 S.W.2d 293, 297 (Tex.App.-Austin 1997, pet. ref'd) (citing Montoya); Johnson v. State, 882 S.W.2d 39, 41 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (same). A person commits sexual assault of a child if the person intentionally or knowingly causes the penetration of a child's sexual organ by any means. Tex. Pen. Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2006). A "child" for purposes of this statute is a person younger than 17 years of age who is not the spouse of the actor. Id. § 22.011(c)(1). A person commits indecency with a child if the person engages in sexual contact with a child or causes the child to engage in sexual contact and the child is younger than 17 years of age and not the person's spouse. Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003). Sexual contact is defined as any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child if the act is committed with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1). C. Discussion 1. Counts Two and Three
In his first two issues, appellant challenges the sufficiency of the evidence to support the aggravated sexual assault convictions under counts two and three. Counts two and three allege appellant engaged in oral-genital contact with K.W. on or about November 1, 1999 and October 1, 1999, respectively. Appellant contends the State did not prove K.W. was younger than 14 years old on the date of the offenses. K.W. was born July 8, 1985, making her 14 years old on the dates alleged in counts two and three. However, the State is not bound by the offense date alleged in the indictment. The State may prove any date-before, on, or after the date alleged in the indictment-as long as the date proved is before the indictment was presented and within the limitations period. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997) ("on or about" language in indictment authorizes State to prove date other than date alleged in indictment as long as date is before indictment presented and within limitations period); see also Garcia v. State, 981 S.W.2d 683, 685-86 (Tex.Crim.App. 1998) (indictment does not have to specify precise date when offense occurred because (1) time not ordinarily material element of offense; (2) primary purpose of specifying date to show offense not barred by limitations, not to give defendant notice of date of offense; and (3) may be impossible for State to know exactly when offense occurred). Of course, here, even though the State did not have to prove a precise date of offense, it had to prove K.W. was younger than 14 years old at the time of the offense. We examine the evidence under each count to determine whether the State met its burden. Count Three Count three alleged oral-genital contact on or about October 1, 1999, when K.W. was 14 years old. K.W. testified the first time appellant engaged in oral-genital contact with her was when she was 12 years old. A victim's testimony is legally sufficient to support a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07(b) (Vernon 2005); Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978). The only contrary evidence was appellant's testimony that he did not do it. The jury could have reasonably concluded that count three referred to the first time appellant engaged in oral-genital contact, or when K.W. was 12 years old. We conclude the evidence is legally and factually sufficient to support the conviction under count three. We overrule appellant's second issue. Count Two Count two alleged oral-genital contact on or about November 1, 1999, also when K.W. was 14 years old. Although the State was not bound by the date alleged in this count, K.W. offered no testimony about when this contact occurred. She testified specifically about the first time it occurred and then stated it happened at least two times, but there was no testimony that established a separate offense for oral-genital contact under count two when K.W. was younger than 14 years old. The State argues K.W. testified appellant engaged in oral-genital contact at least once at the trailer in Terrell in 1996 when she was 11 years old. But we have found no testimony in the record to support the State's argument. The jury may infer age from the circumstances, but it must have evidence upon which to base the inference. See Stewart v. State, 933 S.W.2d 555, 557 (Tex.App.-San Antonio 1996, pet. ref'd) (jury not free to make findings that have no support in evidence). The charge asked the jury to find appellant guilty if they found he engaged in oral-genital contact on or about November 1, 1999, as the indictment alleged. Because that date is after K.W. turned 14 years old and there is no evidence of the date this incident occurred, we conclude the evidence is legally insufficient to prove K.W. was younger than 14 years old when the incident alleged in count two occurred. However, the jury was also charged on the lesser-included offense of sexual assault, which required the State to prove K.W. was under 17, not 14, years of age at the time of the offense. Because K.W. testified the oral-genital contact occurred at the rental house, and the evidence showed she lived at the rental house when she was between the ages of 12 and 16, the evidence is sufficient to show the incident occurred when K.W. was younger than 17 years of age. We conclude the evidence is legally and factually sufficient to show appellant committed the lesser-included offense of sexual assault of a child under count two. When the evidence is insufficient to support conviction of the charged offense, but sufficient to support conviction of the lesser-included offense, and the jury was instructed on the lesser-included offense, we may modify the trial court's judgment to reflect guilt of a lesser-included offense and affirm as modified. Tex. R. App. P. 43.2(b); See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). We sustain appellant's first issue. We modify the judgment to reflect a conviction for sexual assault under count two and remand for a new punishment hearing. See Bigley, 865 S.W.2d at 27-28. 2. Proof of Specific Incidents
In his third issue, appellant argues the evidence is legally and factually insufficient to support the convictions on all counts because the State did not prove separate incidents constituting the commission of multiple offenses. Appellant concedes that multiple sexual assaults committed over a period of time against the same victim constitute separate offenses under Texas law and subjects the offender to separate prosecution and punishment for each offense. See, e.g., Vick v. State, 991 S.W.2d 830, 832-33 (Tex.Crim.App. 1999); Ochoa v. State, 982 S.W.2d 904, 907 (Tex.Crim.App. 1998); Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App. 1992). And the State may indict these multiple offenses in separate counts under one indictment, as the State did in this case. See Vick, 991 S.W.2d at 834. Appellant also concedes the State does not have to prove the assaults occurred on specific dates. See Garcia, 981 S.W.2d at 685-86. But, relying on Klein v. State, 191 S.W.3d 766 (Tex.App.-Fort Worth 2006, pet. granted), appellant argues K.W.'s testimony is insufficient to establish separate offenses. The court in Klein concluded the complainant's testimony was too general to support a conviction for multiple counts of aggravated sexual assault and indecency with a child. See id. at 775. We disagree that K.W.'s testimony is similarly too general. Initially, we note that counts five, seven and eight allege distinct offenses. Count five alleges appellant penetrated K.W.'s vagina with his penis; count seven alleges appellant touched K.W.'s breasts; and count eight alleges appellant touched K.W.'s genitals. Even if these offenses occurred in one single criminal episode, they nevertheless constitute separate and distinct offenses under Texas law. See Vick, 991 S.W.2d at 832-33. Appellant also alleges the evidence is insufficient to support his convictions under counts seven and eight because those counts did not allege a date of offense. Appellant has cited no authority for the proposition that failure to allege a date of offense in the indictment causes the evidence to be insufficient. As we stated before, a date is included in the indictment for limitations purposes only. And K.W. testified the incidents in counts seven and eight occurred when she was 11 years old and living at the trailer in Terrell. The only contrary testimony was appellant's denial of the offenses. Counts one and six allege digital penetration on or about March 15, 1999 when K.W. was younger than 14 years old (count one) and on or about November 1, 2001 when K.W. was younger than 17 years old (count six). K.W. testified appellant digitally penetrated her on three occasions when she lived at the trailer house in Terrell. She described the first time it happened and testified it happened at least two more times at this same location. The evidence showed K.W. lived at this location when she was 11 years old and moved from this house when she was 12 years old. Counts two, three, and four allege aggravated sexual assault by oral-genital contact on or about November 1, 1999, on or about October 1, 1999, and on or about November 1, 1998, respectively. Although K.W. did not testify about specific dates when appellant committed these offenses, she testified the first time was when she was 12 years old. She said appellant continued to do this and it happened at least three times while she lived at the rental house. Having reviewed the entire record, we conclude the jury could have reasonably inferred from the testimony that the indictment alleged and the State proved that each count was a separate offense. We overrule appellant's third issue. III. Motion to Quash
In his fourth issue, appellant argues the trial court's denial of his motion to quash counts seven and eight of the indictment deprived him of notice because counts seven and eight do not allege dates the offenses were committed. The State argues the date alleged at the beginning of the indictment applied to these counts. Appellant urges he was harmed by the assessment of four life sentences and four twenty-year sentences. Appellant cites no case, statutory, or constitutional authority to support his argument. An argument that fails to cite supporting authority presents nothing for review. Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000); Billy v. State, 77 S.W.3d 427, 429 (Tex.App.-Dallas 2002, pet. ref'd); Tex. R. App. P. 38.1(h). We overrule appellant's fourth issue. IV. Modification of Judgments
In our review of the judgments in this case, we found that the age of the victim was misstated in that part of the judgment reflecting sex offender registration requirements. We have the power to modify a judgment when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); see also Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd); Wynn v. State, 847 S.W.2d 357, 361 (Tex.App.-Houston [1st Dist.]), aff'd, 864 S.W.2d 539 (Tex.Crim.App. 1993). On our own motion, we modify the judgments to reflect the victim's correct age on the dates of the offenses. Specifically, the judgments for aggravated sexual assault of a child under counts one, three, and four contain the following language: The Sex Offender Registration Requirements under Chapter 62, CCP, apply to the Defendant. The age of the victim at the time of the offense was 14 years of age. But as alleged and proved in this case, the victim was younger than 14 years of age on the dates of these offenses. Because we have concluded the evidence is sufficient to support the convictions in each of these counts, and because each of these counts required a showing that the age of the victim was younger than 14, we modify the judgments in counts one, three, and four as follows: The Sex Offender Registration Requirements under Chapter 62, CCP, apply to the Defendant. The age of the victim at the time of the offense was younger than 14 years of age. Additionally, for similar reasons, the judgments in counts five and six (sexual assault of a child) and seven and eight (indecency with a child by sexual contact) are modified as follows: The Sex Offender Registration Requirements under Chapter 62, CCP, apply to the Defendant. The age of the victim at the time of the offense was younger than 17 years of age. V. Conclusion
We sustain appellant's first issue regarding count two. We modify the judgment under count two to reflect a conviction for sexual assault of a child and remand for a new punishment hearing. We modify the judgments in counts one, three, four, five, six, seven, and eight to reflect the correct age of the victim under the sex offender registration requirements and, as modified, affirm.